58.
However, claims based on respect for privacy and family life do not depend
on confidentiality (or secrecy) alone. As Tugendhat J said in Goodwin v News Group
Newspapers Ltd [2011] EMLR 502, para 85, “[t]he right to respect for private life
embraces more than one concept”. He went on to cite with approval a passage
written by Dr Moreham in Law of Privacy and the Media (2nd ed (2011), edited by
Warby, Moreham and Christie), in which she summarised “the two core components
of the rights to privacy” as “unwanted access to private information and unwanted
access to [or intrusion into] one’s … personal space” - what Tugendhat J
characterised as “confidentiality” and “intrusion”.
59.
Tugendhat J then went on to identify a number of cases where “intrusion had
been relied on by judges to justify the grant of an injunction despite a significant
loss of confidentiality”, namely Blair v Associated Newspapers Ltd (10 March 2000,
Morland J), West v BBC (10 June 2002, Ouseley J), McKennitt v Ash [2006] EMLR
178, para 81 (Eady J), X & Y v Persons Unknown [2007] EMLR 290, para 64 (Eady
J), JIH v News Group Newspapers Ltd [2011] EMLR 177, paras 58-59 (Tugendhat
J), TSE v News Group Newspapers Ltd [2011] EWHC 1308 (QB), paras 29-30
(Tugendhat J) and CTB v News Group Newspapers Ltd [2011] EWHC 1326 (QB),
para 23 (Eady J), to which can be added CTB v News Group Newspapers Ltd [2011]
EWHC 1334 (QB), para 3 (Tugendhat J), Rocknroll v News Group Newspapers Ltd
[2013] EWHC 24 (Ch), para 25 (Briggs J), and H v A (No 2) [2015] EWHC 2630
(Fam), paras 66-69 (MacDonald J).
60.
Perusal of those decisions establishes that there is a clear, principled and
consistent approach at first instance when it comes to balancing the media’s freedom
of expression and an individual’s rights in respect of confidentiality and intrusion.
There has been not even a hint of disapproval of that approach by the Court of
Appeal (although it considered appeals in McKennitt [2008] QB 73 and JIH [2011]
1 WLR 1645). Indeed, unsurprisingly, there has been no argument that we should
take the opportunity to overrule or depart from them. Accordingly, it seems to me
that it is appropriate for this Court to adhere to the approach in those cases. Not only
do they demonstrate a clear and consistent approach, but they are decisions of judges
who are highly respected, and, at least in the main, highly experienced in the field
of media law and practice; and they were mostly decided at a time when access to
the internet was easily available to the great majority of people in the United
Kingdom.
61.
The significance of intrusion, as opposed to confidentiality, in these decisions
was well explained in the judgment of Eady J in CTB [2011] EWHC 1326 (QB),
where he refused an application by a newspaper to vary an interlocutory injunction
because of what he referred to as “widespread coverage on the Internet”. At para 24
he said that “[i]t is fairly obvious that wall-to-wall excoriation in national
newspapers … is likely to be significantly more intrusive and distressing for those
concerned than the availability of information on the Internet or in foreign journals
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